N and N

[2000] FamCA 1350

[2000] FamCA 1350

THE FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA  No. SY 10281 of 1991

AT SYDNEY

SITTING AT NEWCASTLE

IN THE MARRIAGE OF

N                   (Applicant Father)

AND  N                   (Respondent Mother)

CORAM:  The Honourable Justice Mullane

Dates of Hearing:  30 & 31 May, and 1 June 2000
Date of Orders:  2 June 2000
Date of Judgment:  10 August 2000

JUDGMENT OF THE COURT

Appearances:

Mr Lethbridge of Counsel instructed by Messrs Musgrave Peach, Solicitors, DX 10509, North Sydney appeared for the Applicant Father.

Mr Gould of Counsel instructed by Messrs Briggs Paul Dowding, Solicitors, DX 1538, Sydney appeared for the Respondent Mother.

N – SY 10281 of 1991

CHILDREN – Jurisdiction 
COURTS & JUDGES – Power to order child to see Judge in chambers for judge to inform child of orders and reasons
FAMILY LAW ACT 1975 (CTH) -Sec.68G – interpretation, Family Law Rules Order 33 rule 5 – interpretation
JURISDICTION OF FCA – inherent jurisdiction.

HEADNOTE:  In residence proceedings the Trial Judge proposed to see the subject child, aged almost 12, before delivering the Judgment to explain the orders proposed and the reasons.  This was opposed by the father who submitted that the Court had no such power. 
Held:
Section 62G of the Act does not apply to such an interview.
Such an interview is within the inherent power of the Family Court of Australia.
Order 23 rule 5 applies to such an interview.
Australia's signing and ratification in 1990 of The United Nations Convention on the Rights
of the Child, signed and ratified by Australia in1990, gives rise to a legitimate expectation  that the Family Court will exercise inherent powers in conformity with that treaty (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273).

INTERVIEW WITH R

1. When at the end of the hearing I observed that I proposed to see the child R with the counsellor when the orders were made and inform him briefly of the orders and the reasons, the father’s Counsel indicated the father’s opposition to that course, argued against it and submitted that the Court has no power to do so.

2. For about 5 years now I have adopted a practice of meeting the subject children in parenting proceedings who are 11 or older and, depending on the circumstances, some who are younger, for the purpose of telling them in 15 minutes or less the outcome of the proceedings, the orders proposed and a summary of the reasons.  The child is accompanied by the counsellor or welfare officer who prepared the welfare report and where there is one, the Child’s Representative.  In the past the meeting has occurred immediately before the delivery of the judgment and the orders in Court.  This is the first occasion that the procedure has been challenged.

3. In these proceedings R was an intelligent boy who is almost 12.  There was evidence of the Family and Child Counsellor of his expressed wish to live with his father.  There was also evidence of his interactions with each of his parents and members of their households and his relationships with the significant people in his life.

4. The proceedings had been under way for about 15 months when the orders were to be made.  R had been well aware of the litigation throughout that period.  His father had told him about various stages of the proceedings.  He was present when his mother was served with the application and discussed it with her.  His father had also talked with him about the expense of bringing the proceedings and his concern that he not waste his money.  His father had told R he should tell his father if at any time he changed his mind and wanted to live with his mother.  R was no doubt aware of his parents’ attendance at the 3 day hearing and the tension as they awaited the outcome.

5. The evidence of the counsellor, which the Court accepted, was that R’s expressed wishes were partly based on subtle pressure from his father and partly on a perceived need to live with his father out of fairness to him.

6. The decision of the Court was that R should continue to reside with his mother, as he and his elder brother had done since the parents separated in 1991.

7. These proceedings were about R’s interests.  He had not been present or represented at the hearing.  His only participation had been through his attendance for interview and observation sessions with the counsellor.  He knew about the proceedings and was mature enough and intelligent enough to understand the orders and the Court’s reasons, if informed of them.  It was better for him to receive that information from a third party rather than one of his parents, so as to ensure some objectivity.  It was a demonstration of the Court’s respect for the young person in question and his rights to participate in proceedings concerning him for the Judge to see him personally in the way proposed.

8. There is no specific provision of the Family Law Act providing for a Judge to meet with a child the subject of proceedings, either prior to a decision or at the time of giving it.

9. Section 68G of the Act provides that a Court may, in deciding whether to make a particular parenting order inform itself of the wishes expressed by a child by a report under Sec.62G(2) or “subject to the applicable Rules of Court, by such other means as the Court thinks appropriate”.

1. Subrules 1 to 4 of Order 23 rule 5 provide:  

   (1)       A Judge, Judicial Registrar or Magistrate may interview in chambers or elsewhere a child who is the subject of proceedings under Part VII of the Act.

   (2)       The interview may be in the presence of a family and child counsellor, a welfare officer or another person specified by the Judge, Judicial Registrar or Magistrate.

   (3)       Evidence of anything said at the interview shall not be admissible in any court.

   (4)       If a child is separately represented in accordance with an order made under section 68L of the Act, the child must not be interviewed under subrule (1) unless the child’s representative consents to the interview.

2. If the only power relied upon to make subrule (1) were that in Section 68G, then the interview under the subrule could only extend to an interview for the purpose of ascertaining R’s expressed wishes and conducted before the decision is made.  There are three matters which suggest that the rule is not made in reliance upon Section 68G:

a)It is not stated to be limited to interviews for the purpose of ascertaining a child’s expressed wish;

b)it is not stated to be limited to interviews with a child before the Court has decided the orders to be made or before orders are made;  and

c)it is expressly provided in subrule 3 that anything said in the interview is not admissible in any court.

1. On the face of it the rule authorises an interview of a child of the type proposed in the present proceedings.

1. Whilst there are reported decisions such as Nicholson and Crans (1976) FLC 90-025 and H v H (1974) 1AllER 1145 concerning situations where a Judge has relied on information from an interview of the child, I am unaware of any decision concerning an interview such as proposed in these proceedings.

1. Although order 33 rule 5 appears to permit such a process, in any event it is a procedure within the inherent power of the Court as a Superior Court of Record (see generally Taylor v Taylor (1979) 143 CLR1).

   ‘Inherent jurisdiction’ is the power which a Court has simply because it is a Court of a particular description.

   ((1972) 127 CLR at 7 per Menzies J with whom Barwick CJ and Walsh and Stephen JJ agreed.)

1. The inherent powers of a Superior Court extend to prohibiting the attendance of members of the public at the hearing where the administration of justice would otherwise be rendered impracticable (Scott v Scott [1913] AL 417 at 446);  preventing publication of a report of a hearing (Halsbury’s Laws of Australia [125-110]);  preventing steps being taken that would render judicial proceedings ineffective (Tait v R (1962) 108 CLR 620);  and, ensuring convenience and fairness in proceedings (O’Toole v Scott (1965) SR (NSW) 113).

1. The inherent power extends to control of the process, practice, and procedure and the conduct of persons in Court (see generally R v Forbes;  Ex parte Bevan (1972) 127 CLR1).

1. The United Nations Convention on the Rights of the Child was signed and ratified by Australia in 1990 and entered into force in Australia on 16 January 1991.  Relevant provisions of the Convention include paragraphs 1 & 2 of article 9 and Article 13, which state:

   Article 9

   1         States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.  Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

   2         In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.

   Article 13

   1         The child shall have the right to freedom of expression;  this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of the child’s choice.

   2         The exercise of this right may be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:  (a) for respect of the rights or reputations of others;  or (b) for the protection of national security or of public order (ordre public), or of public health or morals.

2. Although these provisions have not been incorporated into the municipal law by statute, the ratification of the treaty gives rise to a legitimate expectation that this court will exercise its inherent powers in conformity with the treaty; (Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273).

1. The interview proposed was intended to inform the person whose interests are most affected by the proceedings of the outcome and the reasons in a way which is more beneficial to him and more respectful of him.  It is clearly within the inherent power of the Court.   It was not shown to offend any legal principle.  Accordingly, the order was made for the mother to arrange R’s attendance at the interview and the interview occurred.

1. In order to avoid any suggestion that the interview served any other purpose, the final orders were made immediately before the interview.